Speech by Justice & Equality Spokesperson Niall Collins on the Children & Family Relationships Bill

Ireland has changed immeasurably in the past three decades. How we communicate, how we work, and how we live are now unrecognisable to only a number of years ago. Our state has had to update its laws to reflect these changes and ensure that legislation reflects a modern Ireland. This is true too of our families. It is a simple fact that Irish families are far more complex today than our legislation recognises. Many non-traditional loving family units are not protected or supported by our current laws. This needs to change.

For this reason, we support the principle of the Children and Family Relationships Bill which represents one of the most important reforms of child and family law since the Adoption Act passed in 2010. This Bill will address serious deficiencies in how family law operates in Ireland and will ensure the principle that actions and judgments made by our courts will reflect what is in the best interest of the child. This is a very welcome change and reflects the sentiment expressed by the Irish people when they voted to support the Children’s Rights Referendum introduced by the current Minister for Justice in November 2012.

This is a complex and significant piece of legislation. Its size and impact on how this state deals with the most fundamental unit of society will be immense. For that reason we must be careful as this Bill makes its way through the Houses of the Oireachtas. There is no point in us rushing this legislation through the House if we find that the law will need to be amended again in a year’s time or less.

I must put on record my concern at the Government’s delay in publishing the current legislation. The first General Scheme of the Bill was published on the 30th of January 2014 by then Minister Alan Shatter TD. We were still waiting on the final draft to be presented to the Dáil last week despite commitments that the legislation would be passed well before the expected marriage referendum in May 2015. On a point of principle, I do not believe that legislation of this importance should be only days in advance of second stage being taken in this House and for all members to have gone through the legislation, stretching into hundreds of pages in four days before the first debate is commenced. That’s unhelpful and creates a lot of cynicism about how we do our business in Leinster House. Given the scale and impact this legislation will have we could have done better in this regard.

It is also not helpful that both the Bill and the referendum are being discussed in parallel as it causes confusion. While I acknowledge the fact that proceedings in the courts prevented certain aspects of the legislation to be brought forward, the failure to act sooner in drafting and publishing the Bill may have a significant impact on the marriage equality referendum. Already, we are seeing the debate about the referendum being influenced by matters which have nothing to do with the equality referendum itself. An element contributing to that is the fact that the current Bill is only now going through the House and the Gender Recognition Bill is being discussed in the Seanad. These pieces of legislation are important in their own right. The fact now they are all being mixed into the one debate is unfortunate and does not help the focused understanding necessary for the marriage equality referendum.

Indeed, I acknowledge the fact that the Department of Justice and Equality has faced serious and fundamental challenges since the original General Scheme was published. I think we all acknowledge that those challenges of accountability and Garda reform should have been addressed quicker and allowed the Department to get back to the work at hand. In any case, those responsible for failing in those challenges lie elsewhere but it must be noted that the dysfunction which we have witnessed in the Department of Justice over the past year or so have had an impact on this legislation too.

Nonetheless, we welcome the fact that the proposed legislation seeks to put children at the heart of family law, provide legal clarity around various family types and address discrimination faced by children in non-marital families. It is our hope that the Bill will significantly reduce the number of cases going to courts due to the current legal vacuum.

The Irish Constitution places great importance on the family and defines it as ‘the natural, primary and fundamental unit group of society’ (Article 41). However, the Courts have narrowly interpreted the constitutional family as only including marital families.

Cohabiting couples, civil partners, lone parents, unmarried fathers and grandparents are all excluded from this definition. There are an increasing number of children in Ireland who are being cared for in non-marital settings. Indeed, one in four children live with lone mothers and almost one in ten live with unmarried cohabiting couples.

Yet the law does not provide a mechanism whereby the unmarried parents’ relationship with the child is recognised. This can impact on their day-to-day parenting role, for example, consent to medical treatment or the granting of permission for school trips.

This lack of legal clarity can be particularly detrimental to a child in the context of family breakdown. In this regard the legislation’s aim to provide greater legal certainty and recognition of the relationship between the child and the person or persons who are responsible for their everyday care and upbringing is a very welcome development.

We welcome the fact that this legislation is designed to take account of the growing complexity and diversity of modern families. We welcome the important changes to the laws on adoption, custody and assisted human reproduction. Whereas existing laws state that only married couples or sole applicants can seek to adopt a child, this legislation will extended the right to adopt to same-sex civil partners. It also allows cohabiting couples who have been living together for three years in a committed relationship to adopt children jointly.

These are all welcome changes which I believe reflect modern Irish life and the diversity which is found in that life today. The most important aspect of all of this is the principle that children will be the main consideration of the state and its courts whenever considering actions which concern them. This is something which has been sought for some time and will, I hope, result in a mind-set change in how we deal with children by our state agencies. While many state agencies have made a significant contribution to the well-being and development of our children, unfortunately, there have been many instances where legislation, constitutional law or other policy considerations have left down children and in the most awful of ways.

This Bill will ensure our courts must make judgments with the best interest of the child at its core and examine the benefit to the child of having a relationship with both of their parents, assess the child’s physical, psychological & emotional needs, their religious, spiritual, cultural and linguistic upbringing and needs, the child’s views, having regard to their age & maturity, the history of the child’s upbringing and care, including the nature of their relationship with their parents and any harm the child has been subjected to, or is at risk of.

One area not included in the Bill is that of surrogacy. This issue was dealt with in the Heads of the Bill published by former Minister Shatter. However, Minister Fitzgerald has outlined that she decided to remove it from the revised general scheme published last September as a Supreme Court decision was pending at that time.

We believe this was a sensible decision but the surrogacy legislation should be brought forward as soon as possible. Failure to legislate in this area has caused much uncertainty for families, which is unfair. Yes, I understand this is a very difficult area to legislate for and that there are ethical considerations in relation to commercial surrogacy in particular to be taken account of, nonetheless it is better to allow for proper regulations of this area instead of allowing for unregulated practices to develop.

One area where we believe the Bill falls significantly short also is concerning the rights of unmarried fathers. Treoir have argued that there is nothing in the Bill for unmarried fathers unless they have cohabited with the mother for the requisite time of 12 months, with a minimum of 3 of which must be post birth. Therefore, unmarried fathers will continue to have to resort to the courts if the mother does not agree to sign a statutory declaration for joint guardianship witnessed by a Peace Commissioner or a Commissioner for Oaths.

This to me seems like a lost opportunity given how significant the Children and Family Relationships Bill is. In fact, Treoir have stated that this is a ground-breaking piece of legislation but it is failing to address the current discriminatory situation of unmarried fathers. They have stated that we should pass legislation in line with other jurisdictions such as the UK, many European countries and Australia, where unmarried fathers are given automatic rights to their children when jointly registering the birth.

One of the interesting examples used by Treoir is the fact that the majority of parents and professionals mistakenly believe that having a father’s name on a birth certificate of a child gives him guardianship rights. They have stated that this misinformation has major adverse consequences for children. Their recommendations in this regard were that in the very least the Children and Family Relationships Bill should make mandatory the provision of information to all unmarried parents, at the time of birth registration. They have asked that the information provided should state the legal position of unmarried families, in particular the lack of rights for non-cohabiting unmarried fathers. They have suggested that the provision of mandatory information could be aligned with the current changes being brought about by the Civil Registration Amendment Act 2014.

Another issues raised by Treoir was a scenario where a Statutory Declaration for Joint Guardianship is signed and subsequently is mislaid or destroyed resulting in no evidence of the fact that the father has guardianship rights to his child. This can have dire consequences such as a father losing contact with his child (particularly where a mother changes country of residence) or not being able to consent to medical treatment for his child. They have asked that the Bill make provision for the establishment of a Central Register for Joint Guardianship Agreements to keep a record of Statutory Declarations agreeing guardianship rights. Indeed, the Oireachtas Committee on Justice, Defense and Equality and the Law Reform Commission have both recommended the initiation of a Central Register for Joint Guardianship Agreements.

I would implore the minister to address these issues as outlined by Treoir. It would certainly seem unfair to me that at a time of such fundamental change in family law across the board that the rights of unmarried fathers are still denied despite this significant opportunity. I would appreciate if the Minister could outline whether changes may be considered during committee stage of the Bill. Fianna Fáil will be seeking to table amendments reflective of Treoir’s concerns in light of their comments.

This is probably one of the most significant pieces of family law legislation that will be passed by this House for decades to come. It is important in that sense that we get the legislation right now rather than having to review it at another time. I believe the delay in publication of the Bill is very unfortunate. However, I will not allow that take away from the significant good that will come about if this legislation is passed. As such my Party and I look forward to supporting this legislation as it makes its way through the Houses of the Oireachtas.